Tuesday, July 5, 2016

“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”

– FBI Director James Comey, 5 July 2016, announcing that the FBI had concluded its investigation of Hillary's handling of our nation's classified information and would not recommend that DOJ file charges (full text here).

I could not believe this morning's press conference. First, FBI Director James Comey laid out facts establishing that Hillary Clinton violated our laws regarding classified information. Then, he said that he would not recommend prosecution. Good God, we are now living in a banana republic. The politically connected are above the law.

Hillary Clinton set up a private e-mail system in order to hide her activities while Secretary of State from being made public pursuant to FOIA requests and legal process. She sent and received classified information across her private system, she stored the information on her private system, and the system was not only subject to hacking, but being run by people almost certainly without the security clearances to allow them such access. She should be in jail for life plus several centuries. Had anyone else done this, they would be.

What Comey did to exonerate Hillary was make up his own set of “straw men” laws, then burn them down. Let me explain.

The facts Comey laid out in his press conference can only be described as damning. They don't present a judgment call, they present jury questions under at least three statutes.

Here are the facts that Comey laid out in his speech. All are quotations, with my comments in brackets:

1. From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification.

2. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the e-mails were sent. [I have never seen information “up-classified” during my decade of working with classified information. I suspect that these were all emails sent from foreign officers directly to Clinton for her eyes only, and that the State Dept. is taking the position that, while the information in them is clearly sensitive, Clinton – who should have classified them – did not. Thus they cannot serve as the basis for prosecution. I find that highly questionable, but at this point, to quote a scurrilous as of yet unconvicted felon, “what difference does it make?”]

3. The FBI also discovered several thousand work-related e-mails that were not in the group of 30,000 that were returned by Secretary Clinton to State in 2014.

4. “We found seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. [We knew of at least two e-mail chains that included this information. The investigation shows it was worse than we thought.]

5. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. [That kills Hillary's best defense, that these email ended up on her system without her knowledge out of mere negligence]

6. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. [In other words, Hillary's good heart, empty head defense is bullshit.]

7. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails).

8. None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail. [Comey fails to address whether the people responsible for and with access to these servers had adequate security clearances. That is an important point that he ignored.]

9. [W]e assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account. [So much for the claim that the absence of evidence means that she was not hacked. So what happens if Iran, Russia, China, and a host of other nations now have all of Hillary's e-mails, even those that the FBI was not able to reconstruct from the “wiped” servers? And what if those emails contain damning statements about which she could be blackmailed?]

10. Separately, it is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it. [Thank you, Director Comey, for making clear a point that everyone who has ever held a security clearance understands, but which Hillary deliberately tried to obfuscate for the many ignorant of how the system operates]

At least Comey put the lie to Clinton's many claims regarding this email system. Hillary's claim that the information was not marked classified was always a red herring to fool those many useful idiots who wanted to believe her innocent. Further, Comey made clear that anyone in Hillary's position knew or should have known that the information they were discussing was sensitive and should have been handled as classified material. Indeed, with those two issues settled, the question of whether Hillary should be prosecuted should have been a slam dunk.

Yet Comey declined. Why?

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.

Comey misstated the applicable laws. Under his formulation of new security law, Hillary could only be convicted if she was intentionally divulging our national secrets to a foreign party or the press. The fact that she broke every actual law hundreds if not thousands of times, that she did so in order to hide her activities in violation of other laws, and the fact that she destroyed several thousand government records is meaningless to Comey. That is not the **** law.

Let's match the facts up with the laws Hillary violated. The laws at issue are:

18 USC 793 – Gathering, Transmitting or Losing Defense Information
(f) Whoever . . . having lawful possession or control of any document . . . or information, relating to the national defense, (1) – through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior office ------ Shall be fined under this title or imprisoned not more than ten years, or both.

18 USC 1924 - Unauthorized removal and retention of classified documents or material
(1) Whoever, being an officer . . . of the United States, and, by virtue of his office . . . becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both

18 USC 1519 - Destruction, alteration, or falsification of records in Federal investigations and bankruptcy
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

Let's match facts to law now.

Under 18 USC 793(f), Hillary had lawful possession of top secret documents which, by definition, relate to national defense. According to Comey, any reasonable person in her position would have known this. And yet she uses her private system to send and receive e-mails discussing this information. In addition, she stored those emails on a private server that was not the “proper place of custody.” She is guilty of violating this statute more than eight times. Whether she intended to make the information available to foreign nations to the detriment of our nation is wholly irrelevant. The standard is whether she was grossly negligent. And as pointed out below, the purpose of that standard is to make sure that people entrusted with our nation's secrets take required measures to safeguard them. As Comey states explicitly, Clinton did not.

Under 18 USC 1924 (1), with Comey saying that Hillary knew that she was dealing with classified information and that markings are irrelevant to this law, Hillary doesn't even have a bare patina of a defense against this statute. She intentionally retained classified information at an unauthorized location. Period.

Then there is 18 USC 1519. Oh my word. Comey doesn't give us enough information to fully assess this one, but if she destroyed tens of thousands of documents that were in fact government records, the likelihood of her being in violation of this statute is extremely high. Indeed, Comey appears to ignore the interplay between Clinton's actions, the Benghazi committees that were seeking documents while Hillary was still in office, and the various FOIA law suits. If any of those emails were responsive to the Congressional investigations or the FOIA lawsuits, Hillary should be facing multiple felony counts. I would be amazed if Hillary does not stand in violation of this statute hundreds, if not thousands of times over.

Bottom line, we now live in a nation that the progressive left has turned into a banana republic. Every day this woman spends outside of a jail cell is an affront to justice and the rule of law in this nation.

Looking around the internet, I see several others have reached similar conclusions.

Today, the FBI sold out the Rule of Law in America. After describing clear evidence of extensive mishandling of classified national security information, FBI Director James Comey announced that the FBI will not recommend indicting former secretary of state Hillary Clinton. This is naked crony government, ugly and exposed. Comey’s decision will go down as one of the government’s worst assaults on truth in its War on Honesty.

Today’s press conference was, in many respects, an exercise in legal and cognitive dissonance. Comey acknowledged Clinton sent and received Top Secret emails that “any reasonable person” understands not to discuss on an unclassified system.

There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18) . . .

In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence.

Paul Mirengoff (Powerline): "Comey simply ignored the statutory standard he laid out. A first year associate at a law firm wouldn’t dare present an analysis like this."

Scott Johnson (Powerline): "Comey’s additional assertion that the applicable laws have never been enforced under these facts is inexplicable. Have we ever had a case remotely similar to this one? What we have here is Comey comity with the Clinton exception to the criminal laws."

FBI Director James B. Comey dismantled large portions of Clinton's long-told story about her private server and what she sent or received on it during a stirring 15-minute news conference, after which he took no questions. While Comey exonerated Clinton, legally speaking, he provided huge amounts of fodder that could badly hamstring her in the court of public opinion. . . .

It’s hard to read Comey’s statement as anything other than a wholesale rebuke of the story Clinton and her campaign team have been telling ever since the existence of her private email server came to light in spring 2015. She did send and receive classified emails. The setup did leave her — and the classified information on the server — subject to a possible foreign hack. She and her team did delete emails as personal that contained professional information.

Those are facts, facts delivered by the Justice Department of a Democratic administration. And those facts run absolutely counter to the narrative put forth by the Clinton operation: that this whole thing was a Republican witch-hunt pushed by a bored and adversarial media. . . .

Wednesday, March 16, 2016

Caesar: Who is it in the press that calls on me? I hear a tongue shriller than all the music cry "Caesar!" Speak, Caesar is turn'd to hear.

Soothsayer: Beware the ides of March.

Caesar: What man is that?

Brutus: A soothsayer bids you beware the ides of March.

Julius Caesar Act 1, scene 2, 15–19

On the 15th of March, 44 B.C., the Roman Republic signed its death warrant when the Senators conspired to kill Julius Caesar. It was perhaps the most famous political assassination in history. It certainly was an inflection point in world history, marking the demise of the Roman Republic and its degeneration into rule by emperors. Somehow, I think we are seeing a variant on that history play out today on both the left and the right. The election of Trump could well spell the end our Republic. The plot to steal the nomination from him at a contested convention would surely be the end of the Republican Party. And the refusal to indict Hillary would be a de facto end to our nation as a nation of laws existing under the Constitution.

The nation has just suffered through nearly eight years seeing what rule by a progressive left ideologue looks like -- a combination of extra-constitutional rule, cronyism, and identity politics reaching to its ludicrous conclusions. We have an economy that is failing a declining middle class and has been propped up -- barely and only -- by a Fed running the printing presses non-stop and now considering negative interest rates. And Obama will leave the White House in 2017 with America in a much more precarious position in terms of national security -- his insane deal to give Iran a glide path to a nuclear arsenal being the suicidal cherry on top.

Much of what the Obama and the progressive left have accomplished has been enabled by a Court system whose progressive members consider themselves a politburo not bound by the Constitution or democracy, by closed public sector unions that pump incredible sums of laundered taxpayer money back into politics on behalf of progressives, an education system that indoctrinates for progressivism, a system of crony capitalism that operates to disadvantage the middle class and crush entrepreneurship, and by a progressive regulatory bureaucracy that operates outside of the Constitution, passing rules - none voted on by Congress yet still with the force of law -- that are working fundamental change to our nation.

I will admit to high hopes coming into the 2016 election. If you look hard at most of these issues, you will see that they are systemic problems that can only be solved by affirmative political action. Reining in the court system requires action by Congress, as does ending closed sector public unions and putting the regulatory bureaucracy wholly under Congressional control. And I had high hopes that this year, the pendulum would swing far enough to the right that we could elect a conservative for President who would address these systemic issues. Cruz, I thought and still think, understood all of these issues and would be most likely to address them. That said, we had 17 candidates on the Republican side at the start this year and almost all of them would have made decent presidents, if not as effective as Cruz. Rubio understood the national security picture best of all of them. Fiorina understood the problems with cronyism, regulation and Congressional accounting. Carson was an honorable man whose heart was in the right place. Even the weakest of the lot, Kasich and Bush, could have been expected to govern at least as milquetoast centrists, addressing none of the systemic problems but at least making none of them worse.

Instead we get Donald Trump, a narcissist megalomaniac and snake oil salesman extraordinaire. He is a progressive crony capitalist wearing the coat of a Republican because it suits his needs of the moment. He is Obama's mirror image in white face. He is the ultimate black swan. I do not expect a Trump, if elected, to address any of the systemic issues facing our nation. Indeed, his understanding of the issues seems about on par with a modern high school student, so what he will do in any particular situation is an unknown though his knee jerk seems to be to the progressive left. Nor do I expect him in any case to be any more of an effective leader than was Schwarzennager in California or Ventura in Minnesota. Victor Davis Hanson makes the point in a recent article that Trump is, at least, no more debased or worse than any other of the Democrats who have held the Presidency since 1961 and the ascension of JFK. True enough, and 20 years ago I would have broken out the popcorn for a Trump candidacy. But this comes at a time when the progressive left is pushing hard to take a permanent position of dominance and we are in a very precarious position on all fronts. I agree with Thomas Sowell (see here and here) that our nation no longer has the luxury of time to absorb another national leadership / political disaster:

The "Super Tuesday" primaries may be a turning point for America — and quite possibly a turn for the worse. After seven long years of domestic disasters and increasing international dangers, the next President of the United States will need extraordinary wisdom, maturity, depth of knowledge and personal character to rescue America.

Instead, if the polls are an indication, what we may get is someone with the opposite of all these things, a glib egomaniac with a checkered record in business and no track record at all in government — Donald Trump.

If so, the downward trajectory of America over the past seven years may well continue on into the future, to the point of no return. . . .

My fear is not that Trump will be an existential disaster as a President -- though I think he would be disaster. My real fear is that he will be ineffective, address none of the systemic problems, and yet be painted as the embodiment of all things conservative by a progressive media. After four years of Trump, I am afraid that it would be the death knell for the conservative movement and assure our national suicide with the ascendancy of the progressive left.

Having said all of that, there are various people talking about denying Trump the nomination at a contested convention. Indeed, Gov. Kasich, with all of a total of I believe it's 88 or so delegates at the moment, is justifying staying in the race under precisely that scenario. He is living in a dangerous fantasy land.

Perhaps if we arrive in July at a close delegate count without anyone having won the nomination outright with a 50% + 1 delegate count, then a contested convention might be justified. But if Trump is significantly ahead in the delegate count as seems likely and the Republican leadership denies him the nomination, that would be the end for a Republican Party already seen as being completely out of touch with its voting base. Indeed, the rise of Trump can largely be tied to the fact that Republicans in Congress have been completely ineffective in carrying out -- or even trying to carry out -- the wishes of the voters who elected them to office in wave elections. As much as I see Trump as being very likely the end for the conservative movement, shenanigans by the Republican leadership to deny him the nomination at the convention should he prove the clear favorite would absolutely spell the end for the Republican Party. It truly would be the equivalent of Rome's political class assassinating Julius Caesar.

A last note on Trump. The progressive left seems to believe that they have the freedom to shut down all speech with which they disagree. They have been able to get away with this most notably on progressive college campuses because the administrations agree with their positions. They are now seeking to export their tactics into society at large and shut down Trump -- with grandiose plans for much bigger disruption in the future. They succeeded in Chicago, with Trump cancelling his appearance there because of security concerns. And to the extent that there has been some violence involving protestors at Trump rallies, some have sought to blame Trump for this. That is utter horse manure. Trump is not responsible for progressives who believe that they are entitled to disrupt his speech, nor for the response of Americans who refuse to acquiesce to these progressive tactics. As David French wrote recently in National Review:

It will be impossible, over the long term, to maintain peace and even national unity if elite media and the Democratic party continue to condone and even encourage political violence and the systematic violation of individual rights by its radical progressive base. From Occupy to Ferguson to Baltimore to the unrest on campus, Americans have watched the liberal establishment trip over itself to express solidarity and sympathy with protesters who’ve burned, looted, shut down roads and parks, and violated the fundamental rights of American citizens.

. . . For the better part of two years, millions of Americans have watched as violence and disruption actually work. At college campuses, radical students and allied professors and administrators will shout down dissenters, intimidate fellow students, disrupt the educational process, and win. In the streets of American cities, protesters will riot, vandalize, block traffic, and invade shops and restaurants, and they win. When the narratives (“Hands up, don’t shoot,” or “It’s open season” on black males) are debunked by facts, protesters still prevail. Police tactics change even as the national murder rate seems set for its largest spike in 25 years. In the nation’s 50 largest cities, 770 more people were murdered in 2015 than in the previous year. Yet with the exception of a few courageous progressives, the Left largely hails this unrest. Even riots are excused or minimized by leading figures in the liberal intelligentsia, and mob actions that violate the free-speech rights of fellow citizens — by shouting down or shutting down events the Left doesn’t like — are whitewashed as “peaceful protest.” . . .

To try to paint violence at Trump rallies as Trump's fault is one hundred eighty degrees of wrong. One of two things must happen. Either the police must act to arrest these individuals and they be held accountable under the law or they need, in fact to be subject to real violence. The nonviolence of Ghandi and Martin Luther King Jr. only worked because they were appealing to a moral people on the other side. There is no morality on the progressive left beyond a desire for power and control. If they are to be given free reign to act without legal consequence, than they must be made to pay a physical consequence. That or we must bow down to progressives who are willing to use quasi-violent tactics to achieve their goals. It is as simple as that.

And that is the perfect lead-in to the other layer in this crap sandwich, Hildabeast, the likely nominee of the left. This is a woman who should be indicted and facing a lifetime in jail for her utter disregard of our national security. I have held a security clearance. I have worked with classified material. I am quite familiar with the need to safeguard such material, the lengths to which all people who hold such clearances are required to go, and the seriousness with which it is treated. This is an issue that transcends politics. Those on the left who are willing to give her a pass on this are both an utter disgrace and traitors to our Constitutional system, predicated as it is on the foundation that no one is above the law.

There is enough information in the public domain now to say categorically that Hillary Clinton has violated multiple laws regarding the handling of classified materials and should be facing indictment. ANYONE else who had done what she has done would be, at best, out on bail and awaiting trial. That the FBI appears to be slow walking this investigation at the moment is doing a tremendous disservice to our nation. That the media is letting her off the hook by allowing her to continue to make the claim that, because the information on her server was not marked classified, that has the slightest thing to do with her criminal negligence is doing a tremendous disservice to our nation. If she is not indicted, then we are no longer a nation of laws and it is time for blood in the streets.

This year should have been an inflection point spelling the end of the progressive toxins built into our system of government over the past century. Instead, we are reliving 44 BC, when the Republic hung in the balance and Rome went down the path to its dissolution. God help us and our nation.